February 28, 2009

Notice: After almost 6 years, 2500 postings, and a million visits, f/k/a has stopped publishing new posts (and accepting new Comments) as of March 1, 2009. The content is all still here in our archives, of course, so please browse to find unique and wide-ranging punditry, much of which deals with the foibles of lawyers and the rights of their clients, plus thousands of quality haiku by a couple dozen fine poets. See our About page, to learn about f/k/a‘s history, philosophy, honors, etc., and our Prof. Yabut’s Favorites Page for the closest thing we have to a Greatest Hits List. (We may occasionally, but erratically, add a follow-up blurb to an old posting when a topic is in the news.)

Broken Link Warning: Due to an involuntary webserver change in the Spring of 2009, some of our links to internal f/k/a material no longer work. We regret this inconvenience. However, all of our content still exists, and you should be able to locate the desired post by doing using our SideBar Search box or doing a Google Search of f/k/a [put a space and then your search terms after our URL in the Google search box].

All-Archive: This is the last new post that will appear at this web address. As of March 1, 2009, f/k/a will be in “archival status,” with all of our content (dating back to May 2003) remaining available here as archives.

Clicking Client Rights & Legal Ethics here or in the SideBar will bring you to our portal for legal ethics commentary and resources (including extensive discussion of lawyer fees). See “Our Resources” and “Categories” in the Sidebar for more topics.

Go to the Honored Guest Poet Index for links to the individual archive of each of our two-dozen top-notch haiku poets. We’ve collected annotated links to our haiku-related materials and outside websites at the Haiku Resources Page.

No one was willing to go through 2,472 posts to try to choose f/k/a‘s Greatest Hits, but Prof. Yabut’s Favorites Page makes a good substitute.

As I type right now, there are fewer than 12 minutes until my self-imposed midnight shutdown deadline. So, you’re in luck: There’s no time for a long-winded farewell apologia, nor even an attempt to answer Darren Rowse’s recent question: “If your blog died today, what would it be remembered for?” Sad to say, however, the f/k/a Gang — your Editor and his various alter egos — have apparently learned little since we tried to quit this weblog in October 2003. Our sentiments then ring just as true today. Because we still haven’t learned how to pace ourselves, we’re going cold turkey on intense daily blogging, to free up time and energy for creating a more joyful, satisfying and meaningful journey.

A parting note: It’s been great to be able to opine on subjects as diverse as the Graying of the Bar, the meaning of “goomba,” and the importance of pink flamingos and Wendy Savage, while cultivating my artistic side, and bringing the joys of genuine haiku to a wider audience. Many thanks to all who have made f/k/a their regular stop for one-breath poetry and/or breathless punditry, and to the generous and talented poets who let me share their haiku. If I find a new online project or job, I’ll get the word out to my blawging and haijin friends.

One year ago today, I took this picture at the end of the block where the f/k/a Gang lives. We hope to see a lot more of the Mohawk River from now on.

We wouldn’t be the f/k/a Gang, if we weren’t frantically scampering to meet a self-imposed deadline on a Saturday night. It’s a good thing we can re-use the same words written the first time we closed down this weblog, in October 2003, with only minor changes:

Doing ethicalEsqf/k/a has been a very rewarding experience, whether the correspondents agreed with me or not. Until I started a web journal, [my f/k/a Gang of alter egos] thought the internet might be used to sustain established friendships and relationships (mostly with email), but couldn’t possibly create new ones of any significant value. Well, I was wrong.

Comments and e-correspondence sparked by this website have put me in touch with some very good [talented and interesting] human beings, who can scarcely be blamed for being lawyers [or haiku poets]. Although they’re a lot busier than I am, I hope to continue to connect with them across cyberspace.

At the end of this posting, I’ve listed (alphabetically fairly randomly) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

sweet grapes
the conversation passes
between friends

… by Hilary Tann – The Heron’s Nest VIII:1

Far more often than I could have imagined 6 years ago, this weblog has sparked real conversations — the kind that nurture real friendships. Before I list the names of people across the blogisphere who have been the most generous to me and this weblog, I want to share some haiku and senryu about conversations. (more…)

Consumers of legal services won’t find much information online or at their public library to help them keep their costs down when they hire a lawyer. Some websites or firms might hawk their own services or materials as being a great value, or as an option far cheaper than using a lawyer, but almost no one — including bar associations and consumer groups — has compiled general tips on how to make legal services less expensive when you turn from prospective consumer to client. Therefore, when I heard a couple months ago that the legal reform group HALT published a free, online Citizen Legal Guide titled “Understanding Attorney Fees So You Can Keep Legal Costs Down” (November, 2008; 8-pp. pdf. version), I was quite pleased. Unfortunately, once I read it, my reaction to HALT’s Fee Guide was like f/k/a‘s fictional Prof. Yabut: “Yeah, but . . . “.

HALT has been working for over 30 years to achieve “Simple, Affordable, Accountable Justice for All.” f/k/a and our self-help-law sister weblog SHLEP have quoted and linked to HALT, its studies, Report Cards, and guides scores of times, beginning on our very first day of blogging in 2003. To my surprise, however, I was disappointed by HALT’s Understanding Attorney Fees [“UAF“]. It correctly advises consumers that:

“If you find yourself with a legal question, you should explore all of the options available to you and become educated about your legal question. You may actually find that you do not need to hire an attorney. . . . However, if your legal matter is complex, substantial money is at stake, you’re charged with a crime, or you’re simply uncomfortable handling legal matters on your own, you’ll probably need to hire a lawyer.”

However, for those who do need to hire a lawyer, there is simply too much left unsaid in Understanding Attorney Fees about how to keep your legal fees down. The HALT Guide does note that “As a legal consumer, your best defense against paying more than you should is to educate yourself about legal fees before signing on the dotted line.” And, it promises to explain “the most common billing arrangements used by lawyers, some new billing arrangements lawyers are using and specific ways you can lower your legal costs.”

Offers very little help for controlling or lowering fees that are based on an hourly rate for the lawyer’s time — not when the client is entering into an hourly billing agreement, while the services are being provided, nor when presented with a periodic or final bill.

Takes a real dive on contingency fees, completely ignoring HALT’s own position on such fees from a decade ago, as presented in its Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997; issue no longer online). At that time, HALT insisted that p/i lawyers should be charging clients a lower percentage in less-risky cases, rather than using the same standard contingency fee for virtually all clients (i.e, one third or 40%). Lawyers were also required to provide the client with key information and estimates relating to risk prior to entering a fee agreement, with the information included in the signed agreement. Frankly, the contingency fee section in the UAF Guide sounds like it was ghost-written by the plaintiff’s personal injury bar. It doesn’t even mention the word “negotiate.”

Seems to offer a blanket endorsement of “alternative” billing methods, with very little help on how to shop for such fees, and no warning that some lawyers offering alternative fee arrangements in fact intend to extract higher fees than possible when billing by the hour (e.g., so-called Value Pricing).

. . We hope consumers will read HALT’s “Understanding Attorney Fees,” but we believe the HALT staff has left too much out of its Guide. There’s no way the f/k/a Gang can create a comprehensive new draft or supplement to HALT’s publication (especially since we are moth-balling this site tomorrow). We will, however, summarize portions of HALT’s UAF Guide, suggest some tips for keeping fees down, and point to a few other helpful sources.

Consumers shopping for legal services need to remember that every kind of pricing arrangement can be exploited or misused to result in excessive fees or inadequate services. For example, hourly billing might result in a lawyer doing too much, but fixed fees can lead to lawyers doing too little, and contingency fees can make you pay far more than is warranted by the risk the lawyer is taking of not being paid or by the amount of work that will be required of the lawyer. See, e.g., our posts “other thoughtful voices on the lawyer billing debate;” and “the reality of alternate billing.” Clients need to insist on more information and lawyers need to act in ways that create trust and give full value.

First, two quick points:

Unbundling can Save You a Bundle: With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks. If you think you’re willing and able to play a large role in your own legal affairs, but know you want or need a lawyer to help perform “discrete tasks” and serve as advisor and coach, look into Unbundling. (see our prior post; and this posting from SHLEP for an introduction); the excerpts from M. Sue Talia‘s book Unbundling Your Divorce can help you determine if they are good candidate. Find State unbundling rules here.

In “Understanding Attorney Fees,” HALT reminds consumers that “The type of arrangement you enter into can have a huge impact on the amount of fees you’ll pay, so it’s important to understand how each works and the incentives lawyers have for using them.” It explains that:

It’s my last week of posting, so I’m going to indulge myself and discuss a pet peeve or two of mine involving the rhetoric of lawyers and consultants who dislike (and often scapegoat) the billable hour. Rather than sticking with logic, reason, or economics, they often employ hyperbole, overkill, psycho-babble, Straw Men and class warfare (not to mention ridicule). As discussed below, they even insist that being paid by the hour demeans a lawyer. Please.

Thus, as mentioned last week, Ron Baker’s acolyte and echo Christopher Marston recently insisted that “there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

Of course, I’m not an excrement expert (and Mr. Baker has accusedme of ranting and raving and being “someone who lacks a rudimentary understanding of basic economics.”), but the not-buying-time cliche is just a silly Straw Man. The client who pays by the hour, like anyone who employs a lawyer to do legal services, “wants” the lawyer to apply his or her legal knowledge, expertise and experience to the client’s problem or project. Hourly billing is simply one way to compute compensation in a situation where the buyer does not employ the service provider exclusively (and the amount and type of services needed may not be reasonably discernible in advance). As Prof. Jeffrey Lipshaw recently wrote:

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client. . . . [M]y intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

“Neither party seems to care that much about the billing model. Cost certainty? yes. Getting value? yes. Those are worth fighting for, but method of billing? If clients or firms were demanding changes, wouldn’t we have seen it by now?

“The push-pull between clients & firms when negotiating price (and understanding costs, for firms…) is going to exist in either scenario, and frequently depends on the situation. Think: area of practice, work volumes, the substance & length of client-firm relationship, average time for matter execution, and so on. But rather than describing this balance to readers, the sensational prevails – pitting one billing model against the other in a full-on death match! I suppose it’s not sexy to say ‘different clients & matters may require different billing models’. A shame, really.”

At times billing by the hour is a reasonably good measure of the value of those services, and at times it may not be. More price competition is needed for hourly rates, and abuses need to be eliminated, along with excessive quotas imposed on lawyers by their firms. But, hourly billing is clearly not an inherently irrational, exploitative or unethical method for calculating price. By painting hourly billing as the benighted source of all evil, proponents of alternative pricing methods hurt their credibility — especially, when they fail to acknowledge there are incentives inherent in every pricing method that could lead to unreasonably high (or low) fees. (see e.g., ALF#1; and our post “broadening the hourly billing debate“)

.. Mauled by Marxism!Demeaned by Da Man! Ronald J. Baker (see prior post), the guru of “value pricing” and ceaseless crusader against hourly billing, isn’t content with his price sensitivity charts and promises of higher fees in his quest to convert lawyers and accountants from the Almighty Hour. Ron motivates poor downtrodden professionals with his brand of class-based snobbery. He urges them to rise up to capture their true (higher) value by labeling hourly billing as Marxism, and contrasting his superior “knowlege workers” with mere “cattle,” “union workers,” “blue collar occupations,” and those who “work with their hands” rather than their heads, and are stuck laboring by the hour (see, e.g., here and there).

Meanwhile, the usually level-headed and clear-minded Bruce MacEwen of Adam Smith Esq, recently evaluated the billable hour (in “The NYT‘s Obit for the Billable Hour“, January 31, 2009). Included in Bruce’s “Con the billable hour” list is this factor:

note: this is #3 in our final week’s ALF Series on American Legal Fees; click for #1 and #2; and #4–

While I was in law school, bar association Minimum Fee Schedules went from being commonplace, apple-pie, “old-time rock-n-roll” in the legal profession, to being Risky Business in violation of antitrust law. The fee schedules were lists of recommended minimum prices for common legal services. Through disciplinary actions and ethics opinions, bar associations made it clear that a pattern of charging less than the minimum fee constituted misconduct. See, for example, this NY Bar ethics opinion from 1964; a 1961 Colorado Bar opinion; and the Virginia Bar opinion discussed by the Supreme Court at Fn 1. in Goldfarb. The president of the New York Bar Association had himself requested the 1964 opinion concerning departures from the minimum fee schedule, and his so-called ethics committee agreed with him that:

“[T]o let it be known, by whatever means, that a lawyer will customarily charge for his services less than the recommended fees set forth In a duly adopted schedule is not in accordance with Canon 12 and is unethical as a form of solicitation and advertising.”

At the end of my 2L year, the Supreme Court’s decision in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), closed the book on those quaint little non-compete clauses, holding that the Fairfax County Bar Association’s minimum fee schedule was price-fixing in violation of §1 of the Sherman Act. Until then, bar groups had gone around saying they could do whatever they wanted regarding fees, because there was a blanket “learned profession” exemption to the antitrust laws, and that they also had State Action immunity for conduct permitted by state courts in overseeing the legal profession. However, as the case Goldfarb syllabus explains.

“The schedule and its enforcement mechanism constitute price-fixing, since the record shows that the schedule, rather than being purely advisory, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys’ desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding. . . .

“. . . It is not enough that the anticompetitive conduct is ‘prompted’ by state action; to be exempt, such conduct must be compelled by direction of the State acting as a sovereign. Here the State Bar, by providing that deviation from the minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and hence cannot claim it is beyond the Sherman Act’s reach.”

While in law school, we discussed the fee schedules a little bit in my Professional Responsibility class in 1974 (where my famous Harvard Law professor believed lawyers should not be allowed to advertise), and much more in my antitrust classes. [Thereafter, for more than a decade at the Federal Trade Commission, my law practice was focused on the anticompetitive practices of learned professions like medicine and law.]

I’m bringing up this topic now, before we close shop here at f/k/a, because I’m afraid far too many members of the legal profession (and virtually all of the public) have forgotten this chapter of lawyer history and lessons to be drawn from it and its aftermath. A lot of lawyers reading this weblog have suggested the f/k/a Gang is far too suspicious of bar associations and lawyers when it comes to fees and competition. But, I want the “don’t be such a cynic” crowd to remember the Minimum Fee Schedules and what they say about our profession. For me, history (including rather recent history at that) clearly shows:

lawyers almost always feel underpaid and entitled to higher fees

lawyers hate competition, especially price competition and related advertising, and will use peer pressure and ploys like an appeal to the “dignity of the profession” to stifle rivalry

lawyers will exploit any pricing mechanism (turning it into a racket) — and will always find new ways to increase fees when one method of billing becomes disfavored

ALF: But, Yabut, why can’t the Melmac Bar & Grill sponsor the Feline Protection League? You know how important cats are to us.

Yabut: For snacks and meals, you mean.

ALF: Our motto remains: “we always serve you first.”

The f/k/a Gang has been writing about the lax, self-regulated lawyer discipline system since we started this weblog in the Spring of 2003. [See Should Lawyers Control Lawyer Discipline?, June 22, 2003, and links on our Lawyer Disciplinary System Page.] Sleepy Bar watchdogs often seem to be enabling their lupine kin rather than protecting the sheep. Like the legal reform group HALT, we believe our nation should:

For more, see HALT’s 29-page (pdf) paper “Consumers of Legal Services: Unprotected and Underserved,” which notes: “The system of attorney self-regulation is an abject failure and lawyers’ so-called ‘Rules of Professional Responsibility’ do not require attorneys to provide even the most basic consumer information to prospective clients.” HALT urges the broader consumer advocacy community to join their efforts to help achieve “Simple, Affordable, Accountable Justice for All.”

Foxes in the Chicken Coop: We’ve spent 6 years complaining about bar associations that act like mercantile guilds, by protecting lawyers from competition rather than clients from greedy lawyers. There is, in fact, no better reason to junk the self-regulatory system utilized by the legal profession than its utter failure to take its ban on unreasonable fees seriously. In most jurisdictions, the rule against excessive fees has devolved in practice into merely a ban on outright felonious, fraudulent, or otherwise dishonest billing practices (e.g., billing for phantom hours, charging more than one hourly-fee client for a particular interval of time, keeping unearned retainers), rather than telling a lawyer “You’ve charged this client far more than your services of worth.” As demonstrated by their reactions to opinions expressed at this weblog, many lawyers have convinced themselves that any fee a mentally-competent client agrees to is by definition “fair” and they should be able to charge whatever the market will bear.

Except for judicial review in million-dollar cases, the monitoring of excessive fees by the legal profession has been basically delegated to Lawyer-Client Fee Dispute programs. When HALT reviewed such programs state-by-state in 2007, and issued Fee Dispute Report Cards, it found:

“The most pervasive complaint about lawyers is that their fees are too high for the work done. But in evaluating the programs established to settle these disputes between clients and lawyers, our Report Card found a system plagued by an appalling pattern of biased procedures, insufficient resources and little enforcement.” And,

“By allowing lawyers to refuse participation in the fee arbitration process, hiding information from the public about the system, placing roadblocks in front of consumers wishing to resolve a fee dispute, stacking arbitration panels with attorneys and refusing to assist clients in recouping their money, fee arbitration programs across the country are routinely failing to provide a much-needed service to American legal consumers. Until there is meaningful reform, the legal profession has only itself to blame for the widespread public belief that lawyer fees are out of control and going unregulated.”

If self-regulation isn’t to blame, how else can we explain:

So Little Guidance from the Bar or Bar Counsel on How to Avoid Hourly-Billing Excesses and Abuse: You have to look pretty hard to find actual, practical discussion from bar associations or official bar sources on how lawyers and firms can properly use hourly billing. (One exception, which itself could use some amplification, is the 1996 Statement of Principles from the ABA Task Force on Lawyer Business Ethics). As a result, far too many lawyers seem to have forgotten that:

— Hours Expended x Hourly Rate is meant to be the maximum fee that a lawyer can charge under an hourly billing agreement. The figure is not automatic or set in stone but, as the ABA Statement of Billing Principles says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions for time that is not used in an efficient, cost-effective manner.

— Having multiple partners and associates billing their full hourly rates for attending a meeting or court session where they have virtually no active role is unacceptable. In addition, as the ABA Statement of Billing Principles says, “If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.”

— Excessive time spent reviewing and rewriting the work of other lawyers suggests that the original work was not adequately done and should not be billed at regular rates, if at all.

February 16, 2009

.. .. .. The Jerks vs. the Genial: Law professor Jeff Harrison started an interesting discussion last week in a posting at MoneyLaw titled “Ready, Set, Punt” (Feb. 10, 2009). He notes that likablity is a “Pretty crazy way to pick a football team right? The team would lose every game.” Harrison then asks:

“Is there any reason to think the ‘like’ factor is different for law faculty success. At least in football there will be an objective measure of success and an opportunity to cut players. In law school hiring there are no measures and the initial hiring decisions are for lifetime jobs.”

Prof. Harrison concludes by opining that likability “sounds like a great approach if you are deciding who you want to go down to the bar with after school for a drink — which sadly may be the standard by which much hiring is done. It’s a disaster for the stakeholders of a law school.”

In response, Gabriella Montelle wrote “They Like Me, They Like Me Not” (February 12, 2009) at her On Hiring weblog on the Chronicles of Higher Education website. She invited readers to answer two questions:

“Is likability a reasonable consideration in hiring, firing, and tenure decisions or do some committees place too great an emphasis on it? How does it factor into hiring decisions in your department?”

Montelle’s piece attracted a variety of responses, and one Comment by a “humanities doctoral candidate” [“HDC”] impressed Louisville U. law dean Jim Chen so much, he turned it into a separate posting at MoneyLaw called “You like me” (Feb. 13, 2009). [Chen’s “Rocket man” post over the weekend about the remarkably valuable yet unselfish play of NBA player Shane Battier may also be related, as part of his ongoing talent versus character debate. via Simple Justice]. Commentor HDC’s insights included saying:

“The really good scholars are self-confident, and that confidence allows them to treat everyone else with respect and kindness. They are excited about ideas, and they are willing to share. Most of all, they are willing to collaborate — they are the ones organizing symposia, inviting guest speakers, cultivating graduate students, and just generally creating the kind of atmosphere where good work flourishes and everyone benefits.

Meanwhile, Jeff Harrison wrote “But will you love me tomorrow” (Feb. 13, 2009) in answer to Dean Chen, saying that in the faculty context likability or “niceness” is the code for “are you someone with whom I will be socially and politically comfortable.” He insists that “Nice in a faculty meeting is only slightly connected to morality, selflessness, or charity.” Going back to the football analogy, Harrison concludes:

“If personal social and political comfort are critical in determining who gets an offer to join your faculty, it’s like a team thinking more about getting drunk together than winning games.”

An anonymous commentor then told Prof. Harrison that the football analogy was not as apt for a faculty as a comparison to a baseball team. Using Barry Bonds as an example, he states:

“In other words, superstars are worthless if they create a bad vibe in the clubhouse. . . . but the point is, good scholars who aren’t good colleagues are not worth having around, and whatever is ‘good’ about their scholarship will be worthless if they aren’t the sort of person who can get along with colleagues, train students, and just generally make their work environment a pleasant place to be.”

In my experience, HDC and the anonymous commentor have it right. As Jim Harrison suggests, faculty should not be trying to hire or promote only persons who fit within their personal socio-ideological comfort zone. But, they would do well to look for colleagues who match brilliance with unselfishness and congeniality — or, to be more precise, a person who is “genial” in the sense suggested in Merriam-Webster’s definition:

Naturally (this being the cranky old f/k/a Gang speaking), we do not mean “nice” like the smiley-faced gladhanders with gold stars for every student and colleague. Nor do we mean “nice” in Harrison’s sense of “just like me,” as sameness is boring and intellectual quicksand. Law school faculties need bright minds willing to challenge individuals and institutions, and debate issues of law and policy — but, there is no reason to accept less than respect for eachother and agreeable disagreement. [You need, of course, to respect colleagues and students enough to ask hard questions and expect rigorous thinking.]

Law faculty jobs are far too desirable and desired for us to believe that faculty or students have to put up with jerks and selfish manipulators in order to assure brilliance in scholarship or in the classroom. Because there are more than enough more-than-capable candidates, there should be a preference for the genial over the jerkish. That preference may in fact turn out to be a wonderful tool for behavior modification.

In his posting 2007 “talent versus character,” Jim Chen notes how often others have been enablers, willing to justify the odious conduct of a faculty member by saying “He’s a smart guy. Brilliant, even.” That echoed my assertion that same year that:

[H]aving a high IQ is never an excuse for having a low EQ; it’s a reason to demand that our leaders (and our kids) demonstrate and nurture a robust “Emotional Intelligence.”

Daniel Goleman introduced most of us to the notion of EQ, in his 1996 bestseller Emotional Intelligence: Why It Can Matter More Than IQ. (well-reviewed here; click for a quick recap of the “Four Components of Emotional Intelligence“) . . . I’m still amazed at how many otherwise-sensible people are willing to overlook or excuse the emotional immaturity and ineptness of a colleague, friend or family member (and the harm it causes other people), if the low-EQ is attached to a significantly high IQ — and, especially, if accompanied by a large bank account or a powerful position. I think having a high IQ makes the failure to appreciate, nurture and develop ones EQ rather inexcusable.

“According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole. (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.) These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others. Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people. The latter, he argues, must go [from the workplace].”

A$$holes surely do not belong in law offices (even though many clients think they want such characters to champion their causes). They’re even less appropriate in legal academia — especially, when their nasty little show is turned on “impressionable” law students, the very people paying their salaries.

Sutton’s book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website. Search and tenure committees might want to ask themselves how their candidates might fare if they took ARSE and answered honestly.

At her Chronicles of Higher Education weblog, Ms. Mentor advised last week that “They’re Out to Get Me: No matter how good you are at your work, your colleagues won’t keep you if they don’t like you” (Feb. 10, 2009). She says this advice is especially important in perilous times like now, when jobs that once seemed secure seem quite shaky; and she asks whether “your colleagues already avoid you as a sour, combative personality — someone who’ll waste department energy on vendettas?”. I’d like to think that law schools would insist on basic geniality from each of their faculty members in good times, too. In the long run, their “stakeholders” deserve both brilliance and high EQ from every law professor. There are far too many willing candidates to settle for any less.

p.s.Blawging with EQ: If you have a preference for thoroughness and straight-talk, and also wonder who’s been writing good material at lawyer weblogs, check out Mark Bennett’s Blawg Review #199, at his Defending People blawg.

We can’t promise you consistently high EQ here at f/k/a, but we’ll try our best. What we do promise is consistently high-quality haiku. For example, here’s another installment in our project presenting poems from past issues of Modern Haiku. They’re written by poets who later became members of our f/k/aHonored Guest family. Here are more from Modern Haiku Vol. XXVIII: 1 (Winter-Spring 1997), which have not appeared before here at f/k/a:

February 2, 2009

.. Only one week after NYS Supreme Court Justice William Kelly struck down Rockland County’s sex offender residency law in the case of Peo. v. Oberlander (see our prior post), and in “direct response” to the decision, Senate Majority Leader Malcolm A. Smith proposed S.01300, calling the bill “Major Statewide Legislation Aimed to Protect Children from Sex Offenders” (press release, Jan. 30, 2009; reprinted at NewsLI.com). Senator Smith’s legislation would prohibit a registered sex offender from living anywhere in New York State within 1,000 feet of a school building, park, or day care center, for at least ten years after release, and would impose criminal penalties for violations. (The press release was apparently rushed out before the actual bill was ready to post at the Senate website. update [6 PM]: Text of S.01300; bill summary)

Because Oberlander held that State law and policy pre-empted action by local units of government with regard to sex offender residency restrictions [SORR], and about 80 local SORR laws are on the books across New York State, some statewide action is indeed warranted. What we did not need, however, was a stampede to spread residency bans that are a bad idea on a local level throughout the entire State. [update: For example, the proposal in Colonie, NY, to ban sex offenders from living within 1500′ of eachother.]

It takes no courage at all for a politician to support such residency bans. It does take courage, and a deep sense of commitment to fair and effective government, to resist the temptation to “do something/anything” and make believe the problem is solved.

update (Feb. 2, 2009, 6 PM): The text of S.01300 has been posted. It would be an amendment to Section 168-b of the correction law. Under the new Sec. 168-W (1) “No sex offender shall reside in a residence that is within one thousand feet of any” school, building where day care is provided, or park.

The residency ban will last “for the greater of ten years or the period or term of probation, parole, conditional release or post-release supervision,” and “shall apply to sex offenders convicted or released on or after” the law becomes effective [sixty days after it becomes law].

Sen. Johnson is correct that having scores of local SORR laws has created a “confusing patchwork” that we “need to simply.” But, he is also right when he says that we need to get our laws right. Rather than calling for hearings to determine whether current State policy is wise and effective, and whether residency bans actually protect children, Sen. Smith and Sen. Craig Johnson have done the politically expedient thing and immediately moved to impose on the entire state a law that many law enforcement and criminal justice experts have found to be not merely ineffective, but actually counterproductive — and, which will put an expensive and time-consuming burden on law enforcement.

Senator Smith, along with Senator Johnson, has decided to mollify the excessive fears of some members of our community by taking rights away from a disfavored group, even after they have served their time and have met their parole or probation requirements, and with no regard to the actual risk presented by each individual offender.

Incanting “protection of children” and “assurances to parents,” Smith and Johnson are jumping on the residency ban “solution” with “Not a scintilla of evidence that residency restrictions protect children.” (Schenectady Gazette, “Legislators scramble on sex offenders,” by Carl Strock, Aug. 26, 2007, p. B1). And, they’re acting in the face of analysis and evidence showing that the best way to prevent recidivism is to offer offenders a supportive social, supervisory, and therapeutic network, in a context where they are well-monitored and have relevant services readily available, along with the opportunity for stable employment, and the chance to re-integrate into society.

Forcing sex offenders out of the populated areas (away from family and friends, and with inadequate transportation and services) or into tiny sex-offender ghettos, makes it harder to achieve any of those goals, and therefore increases rather than decreases the chance of re-offending. It also hurts the families of the offenders, and will surely upset the residents of the “disfavored” areas that fall outside the zones of protection.

Under the current system, local probation and social services officials have the responsibility to find appropriate housing for the most dangerous sex offenders, taking into account each offender’s situation. That system is working well. Despite the misinformation that comes from politicians and proponents of harsh treatment for sex offenders after they leave the justice system, the most recent sex offender recidivism study notes that:

“sex offenders are arrested and/or convicted of committing a new sex crime at a lower rate than other offenders who commit other new non-sexual crimes.” (Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment, New York State Division of Probation and Correctional Alternatives, May, 2007)

As I said in one of our first posts on the subject of residency bans, in 2007:

The policy issues presented by sex offender residence restrictions are important for the integrity of our society. Notwithstanding the example of the current [Bush] Administration in Washington, we cannot react to fear (especially exaggerated fear) by unduly restricting the civil liberties of an undesirable or unpopular class of people.

We certainly should not be reacting to such fear with measures that are likely to make things worse. [See The Parson.net for a full discussion of why such bans are ineffective and counter-productive; and see the resources at the end of this posting.] In response to the Oberlander case, the State Legislature should act responsibly and thoughtfully. It should clarify that local government units do not have the authority to place residency restrictions on sex offenders beyond those already mandated by State law. In order to best protect our children, the State should continue close monitoring and individualized housing decisions for dangerous sex offenders, while aiming as the long-term goal to reintegrate sex offenders into the community, as they show they are ready to accept the responsibility.

afterwords (Feb. 3, 2009): In his coverage of the new bill last night, Prof. Corey Rayburn Yung at the Sex Crimes weblog has this interesting observation:

“The response provides an interesting contrast with New Jersey. In that state, several courts struck down residency restrictions on preemption grounds. However, as far as I know the state legislature didn’t make a political issue out of it. In New York, it seems like the legislature has taken a different approach. The state has been free to pass residency restrictions all along – so this seems like a basic attempt to politicize a court decision. I wonder if the bill will gain traction.”

It is very difficult to believe that Sen. Johnson is not already aware of the arguments against residency bans that keep a sex offender from re-integrating into society. Should he or other legislators and policy-makers, or members of the public, want to learn more, they can go “below the fold”, where I’ve listed informative resources, along with excerpts and links from prior discussion at this weblog.

afterwords (Feb. 20, 2009): See our post on Peo. v. James Blair, in which an Albany City Court judge follows the Oberlander precedent.

January 20, 2009

Inauguration Day dawned with high expectations. The weather forecast for Schenectady called for partly cloudy skies this morning — the perfect setting for a glorious sunrise (pink-painted clouds in a crisp winter-blue sky) to celebrate the opening of the Obama Presidential Era (in contrast to yesterday’s Bush sunset). Therefore, the f/k/a Gang was up and about much earlier than usual, in order to be caffeinated, bundled up, and out in Riverside Park for the 7:15 sunrise, Canon PowerShot in hand. Outside my front door, however, it became clear that a thick blanket of gray clouds covered our Eastern sky.

After a quick moment of disappointment, I thought: A stately, subdued sunrise is just fine. We don’t need a flashy show, nor rockstar fireworks today. No drama, just the real Obama.

And, Barack Obama did not let us down, after being sworn in as our 44th President. He gave a speech that was sober, not splashy — the goals soared more than the rhetoric. In his Inaugural Speech (text, video), President Obama chose to focus on responsibilities over rights, community over clannishness, public spirit over party spite. He chose to be himself and ask us to be our best selves.

For too many decades, politicians have told Americans that we can demonstrate our freedom with selfishness and our liberty with callousness. So, I want to thank President Barack Hussein Obama for asking us to join him in a “new era of responsibility.” This line is surely being quoted around the world and the web:

“There is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.”

Imagine if “only” a few million of us discovered the truth in that sentence? Then, imagine if the majority of us did?

Frankly, as one of the “nonbelievers” in the “patchwork heritage” of America, I thought there was a little bit too much of the obligatory “God talk” in the inaugural ceremonies. That’s not because I begrudge others their beliefs (although, I do wish they had a bit more respect for my choice to base my moral code on the dignity of man, not the commands of a deity). It’s because I know — as does Barack Obama — that it won’t be God doing “the work of remaking America.” It will be each of us, alongside our leaders. As Pres. Obama correctly noted:

“God calls on us to shape an uncertain destiny.”

Barack Obama impressed and inspired me in his first national appearance, on July 27, 2004 (see our prior post, “Obama, O mama“). He no longer needs to impress me to have my support and best wishes. But, I hope he will continue to inspire all of us — to “put away childish things” and grow into a mature citizenship, within a national community ready to work, learn, and face our joint future together.

January 19, 2009

With sincere thanks to the millions of Americans who are making Martin Luther King Day “a day on, not a day off” — and especially to those who will be going to work and then going to an MLK service project later today — I want to nag my fellow Americans to honor Martin Luther King, Jr. and the spirit of the Obama Nation by making an At-least-a-year-of-service Pledge. Head over to www.volunteer.gov for suggestions and links to volunteer opportunities.

MLK DAY
the monochromatic
winter sky

…. by Ed Markowski

A lot of us folks in the legal profession are woefully short on handy-man skills. And, frankly, we can achieve a lot more Value Added for our volunteer efforts if we use both our minds and our hearts, rather than our backs and sweat, in service to others. Although law-related “pro bono” work comes readily to mind for many with law degrees, I hope a lot of lawyers and law students will consider mentoring a child or young parent — as a human being wanting to touch the life of other human beings. I agree with the folks at National Mentoring month:

“When you serve as a mentor, you enrich your own life as much as you do the life of a child. Mentoring leads to new experiences, new connections, new insights, and new satisfactions.”

We’ve talked about MLK Day themes before. And, we have already thanked America for choosing Barack Obama last November. But, the f/k/a Gang is feeling terribly short on the kind of eloquence that seems adequate to mark the concurrence this week of Martin Luther King, Jr. Day and the Inauguration of Barack Obama. So, we’re going to leave the eloquence to our new President and others better equipped for the task.

Like many postings at this weblog, this one is as much an exhortation to myself as to others — putting words on the public record that will help move me to thoughtful, heartfelt, meaningful action in my everyday life, in service to the community (local and national). Actions are far more important than words; and I believe that quiet individual actions are in the end more important than the rush that comes from being in a crowd in support of a good cause or to be part of a moment of history. I’m going to mark today with a few rare minutes — away from this addictive and often inconsequential weblog and internet — of focused contemplation as to the best use of my limited time and energy in service this year to others and to our nation. Something tells me that I’m going to decide that less blogging and more mentoring is a far more productive and satisfying use of my time.

— photo of the Mohawk River at Schenectady, NY, Jan. 18, 2009; by D. Giacalone —

p.s. Don’t forget to join Yolanda Young’s Blawg Review #195, her special Martin Luther King, Jr. Day edition of Blawg Review. In addition to providing commentary and musings on this year’s celebration, she links to MLK stories from around the blawgosphere. (I love the tagline at her On Being A Black Lawyer weblog; it’s a quote from Charles Hamilton Houston: “A lawyer is either a social engineer or a parasite.”)

Comments Off on MLK & BHO: let’s make it a year, not a day, of service

January 16, 2009

.. Wind power is a popular and growing source of “green” and clean energy. Back in the summer, we wrote about New York Attorney General Andrew Cuomo trying to assure that the process of getting wind-turbine “farms” approved by towns and villages is also clean — free of conflicts of interests, dirty tricks, and anticompetitive practices. See this post on the launching of a statewide investigation, and this one on a voluntary Code of Conduct.

Lawyer Arthur J. Giacalone (who finally has a small website) is my brother (as well as myhaiga collaborator). Due to the nature of his law practice, I’ve been more aware than many proponents of Green Energy that large industrial-scale “wind farms” are often not good neighbors. Art’s zoning-development law practice has long focused on helping residents protect their quality of life, property values and community character. More and more over the past decade, homeowners have come to him deeply concerned over proposed wind farms in their towns, villages and rural communities. Arthur has been working hard on their behalf — with some wins and some losses — to help assure that law makers and public officials use their planning and development powers to require large-scale wind farms to be eco-friendly neighbors. As Art says at his website:

. . . Art Giacalone . . .

They may be touted as “green and clean,” but inappropriate siting of industrial-scale wind turbines can adversely impact the health of nearby residents (“wind turbine syndrome”), the community’s rural character, and the value of properties within the towers’ viewshed.

Last week, Art had a well-deserved victory in the case of Hamlin Preservation Group v. Town Board of the Town of Hamlin (NYS Sup. Ct. for Monroe County; Index No. 2008/11217). In a decision dated January 5, 2009, the Hon. David Michael Barry “set aside and annulled” The Wind Energy Law adopted in April 2008 by the Monroe County Town of Hamlin. Judge Barry said that the Town Board violated the requirements of the State Environmental Quality Review Act (SEQRA) when it neither took a “hard look” at the relevant areas of environmental concern, nor set forth a “reasoned elaboration” for its determination that the wind energy law would not have a significant impact on the environment. See “Hamlin wind power decision blown down in court” (Rochester Democrat & Chronicle, Janl 12, 2009).

The facts are instructive. As Art explained in a press release last weekend:

The wind law nullified by the court would have allowed construction of 400-foot- tall wind turbines within 600 feet of property lines and public roads and 1,200 feet of residences. In adopting the local law, the Hamlin Town Board chose to ignore the recommendations of the town’s Wind Tower Committee for 1,500-foot setbacks from roads and property lines, and 2,640-foot [half-mile] setbacks from residents. The Town Board also disregarded the WTC’s recommended noise standards intended to protect the health and wellbeing of nearby residents.

The Board had argued (rather lamely, methinks) that it didn’t have to explain its conclusion that there would be no environmental impact, because its legislation only imposed restrictions and did not actually allow any specific project.

As my brother knows, I’ve always been a bit worried about the NIMBY phenomenom. With all its open space and wind potential, I believe it should be possible for New York to play an important part in achieving our national goal of developing green energy and moving toward energy independence, while helping with needed economic development. But, I’m also convinced (again, because of all that space) that large-scale wind production can and should be done in a way that minimizes or eliminates environmental damage to the surrounding communities — and thereby eliminates opposition from reasonable people acting in good faith. Art is right when he argues:

“If a town chooses to allow, rather than prohibit, industrial-scale wind development, it must, at a minimum, protect its residents’ health, maintain the town’s rural character, and preserve property values by establishing meaningful setback requirements and noise standards.”

According to the Rochester Democrat & Chronicle, Hamlin Town officials want to move quickly to put a new law on the books. (See “Hamlin to consider new wind power laws,” Jan. 13, 2009) Let’s hope this time they listen to their own Wind Tower Committee and other experts who have come up with workable standards to make windfarms good (if a bit standoffish) neighbors.

“The National Safety Council today is calling on motorists to stop using cell phones and messaging devices while driving, and is urging businesses to enact policies prohibiting it and governors and legislators in all 50 states and the District of Columbia to pass laws banning the behavior.”

“ ‘Studies show that driving while talking on a cell phone is extremely dangerous and puts drivers at a four times greater risk of a crash,’ said Janet Froetscher, president and CEO of the NSC.

“A study from the Harvard Center for Risk Analysis estimates that cell phone use while driving contributes to 6 percent of crashes, which equates to 636,000 crashes, 330,000 injuries, 12,000 serious injuries and 2,600 deaths each year. The study also put the annual financial toll of cell phone-related crashes at $43 billion.”

A fact sheet, data resources and other information concerning cell phone use while driving are available on the NSC website, at distracteddriving.nsc.org.

NSC argues that DWP (like texting while driving) is just as dangerous as DUI, and is far riskier than talking with a passenger or many other distracting behaviors. It also makes it clear that hands-free phoning is not safe:

“When you’re on a call, even if both hands are on the wheel, your head is in the call, and not on your driving,” [NSC CEO Janet] Froetscher said. “Unlike the passenger sitting next to you, the person on the other end of the call is oblivious to your driving conditions. The passenger provides another pair of eyes on the road.”

December 30, 2008

.. It’s not even close: Wendy Savage was by far the most popular subject in 2008 at our modest little weblog — attracting thousands of extra visitors a day for many weeks. See posts such as “Boston’s ‘Beautiful Lawyers Calendar’ is launched” (October 2, 2008) “Wendy Savage Wendy Savage” (Oct. 23, 2008), “lots more Wendy Savage, Esq.” (November 18, 2008). Wendy graced the f/k/a Gang with a pair of blawg Comments, a few additional photographs, and a series of personal email communications, which allowed this Editor get to know her beyond the fashion-model aura.

The death last week of Eartha Kitt — a woman known originally for her sexiness but respected and treasured worldwide for her talent, allure and spunk — reminded me that I wanted to come back to an issue that our coverage of Wendy raised with some of my most valued friends. One intelligent and sensitive Baby Boomer female friend chastised me, saying:

“The world does not need more posting of women with low cut dresses calling attention to themselves. Sorry, but that’s just the way I see it. We get to be human beings , too—women these days are way too sexually objectified constantly.”

My reply at the time was something like: “To me, one of the glories of the human race is that we produce people who can be good, intelligent, talented human beings AND beautiful, and even sexy.”

One of the best things about our current age is that it is possible for a woman to be fully respected — among people with even average levels of EQ — as a human being, and a professional, while being beautiful and sexy. For over a quarter century, I’ve seen smart, sexy women in important positions, as bosses, managers, colleagues, and partners within the legal professsion (beginning in the late 1970’s at the Federal Trade Commission). When such a talented professional woman chooses to have a tasteful-but-sexy photo of herself used for a good cause in a fund-raising calendar, I believe it helps the cause of cross-gender appreciation — even if some juvenile males (who shall always be among us) act like jerks when viewing and discussing the photo, or some thin-skinned females choose to be offended or to act catty. [Note: On a related topic, we opined about neo-puritanism within the legal profession back in 2006, during the flap over a Jiwani ad in Massachusetts Lawyers Weekly. And see our post on the Fetman Firm Billboard.]

When I raised this topic with Wendy Savage back in November, she replied: “I do think that modern, educated men are able to appreciate that a woman can be smart and beautiful, and they want both in a partner. “

Furthering this discussion (a little), Boston Magazine has opened its new publication year with an article that focuses on Wendy Savage, titled “Counsel Requests the Right to Appeal: Smokin’-hot lawyer Wendy Savage defends her buzzy turn as a pinup” (Boston Magazine, by Alyssa Giacobbe, January 2009). After noting that Wendy was “by far the most come-hither among the calendar’s 12 male and female models, and thus the only one who’d attract significant attention,” the BM article states:

.. Photograph at Boston Magazine by Jackson Stakeman .. ..

“Since Beautiful Lawyers was released in October, Savage—2006 graduate of BU School of Law, corporate lawyer, and sometime model—has inspired both a following of oglers and a torrent of criticism on legal blogs for what some consider a risky move for any attorney aiming to be taken seriously, especially a female one. Beneath a post on Above the Law, which shows a picture of Savage in a plunging neckline and calls her “Boston’s version of Joe the Plumber,” the responses go something like this: Wendy Savage can work on my pipe anytime she wants. Or: Her? She’s not that hot. And then, a multipost, Porky’s-esque debate over whether her breasts are real. (Savage declined to comment on such speculation, calling it ‘gutless objectification.’)”

In actuality, Wendy did submit a longer written response to Boston Magazine writer Gioccobe about the authenticity speculation, but they chose not to print it. According to an email Wendy sent us this morning, she wrote:

2) I am conflicted about responding to the gossip on the blogs. The fact that my “peers” are taking time out of their days to offer such asinine commentary (all anonymously I will note) speaks volumes about their character (or lack thereof, to put it more accurately). I have done my best to avoid those who are driven to such pathetic, gutless objectification – I don’t intend to start engaging them now.

It seems to me to reflect the “dumbing down” effect of the Tucker Max culture.

I have learned firsthand what ad agencies and countless women before me have known for ages — all it takes is a little cleavage to turn some men into driveling babies.

The BM article does get a bit more substantive, stating:

“Coming off an election season that saw an intellectual woman flogged for her appearance and an attractive woman attacked for her lack of depth, Savage is acutely aware of the double standard that female professionals face—and how to maneuver around it. ‘I wouldn’t say my looks have been a big positive in my career, but people tend to underestimate you if you look a certain way,’ she says. ‘I think I’m smarter than I appear. That’s worked to my advantage’.”

Wendy also told Boston Magazine: ‘When I was younger, I cared a lot about what people thought about me, people that I didn’t even know,’ she says. ‘But I’m 28 and feeling like I’m starting to grow up. Doing the calendar was my choice, and I’m proud of it.’

We clearly are not going to resolve the issue of the effects on professional and personal reputation from the publication of sexy (but not trashy nor pornographic) photographs of lawyers and other women (or men). When I’ve thought about this and similar topics over the years, I’ve tried to figure out how or why sexiness is any different from all the other attributes that we use to judge/treat/value other human beings, many of which are simply genetic accidents (e.g., intelligence, height, wealth, power, fame, charisma). I’ve also wondered how and whether to distinguish situations where the individual freely chooses to be judged by or to utilize a particular attribute. It is tricky stuff. I know that many disagree with my current sentiments, and I am open to further discussion, while hoping that dissenters or skeptics are also willing to reconsider any blanket condemnation of publishing lovely women in skimpy black dresses.

Enjoying beauty is very natural for human beings of all genders, ages and cultures. If you come here often, you know that the f/k/a Gang also appreciates and greatly enjoys beautiful scenes in nature. Here’s a (non-retouched) photo that I took from the end of my block yesterday afternoon. That’s my favorite bench in Riverside Park, and Wendy Savage is welcome to join me there any time to enhance the scene and the sublimity of the experience:

.. After years of tarnishing the reputation of the chronically-troubled Schenectady Police Department, its former police chief, Gregory Kaczmarek pled guilty on Tuesday to third degree criminal possession of cocaine (with intent to sell). Six years after he retired his position under a cloud, he’s heading for two years in prison, with his stepson looking at three years (and his stepdaughter already doing 6 years for another drug bust), while his wife will spend six months in the County jail. See, “Ex-chief heading to prison: Schenectady’s Gregory Kaczmarek admits to drug charge” (Albany Times Union, Dec. 3, 2008); and “Kaz Family Plan” (Carl Strock’s Freestyle Blog, Dec. 2, 2008)

The story is well-known here in Schenectady, but I thought I’d give it some space here at f/k/a, as a civics lesson (or a shot of schadenfreude) for our readers, and because a little venting might help get the bad taste of Kaz’s career out of my mouth. The convictions are part of a larger drug case that has already sent almost two dozen participants to prison. Greg and Lisa Kaczmarek, who operated a pizza shop they called Capo di Pizza for a few years after he retired in 2002, were minor dealers and users.

. . . From 2003 to 2009, f/k/a ["formerly known as"] was the home of "breathless punditry" and "one-breath poetry." It is all here in our Archives. You'll find commentary on lawyers and legal ethics, politics, culture, & more, plus "real" haiku by over two dozen Honored Guest Poets.